Sunday, November 20, 2005

Japanese Whaling in ‘Australia’s’ Antarctic Waters

You might think that if illegal whaling was occurring in Australian waters, there might be a Court in Australia where you could challenge that activity. However, if those waters are off Antarctica, you’d be wrong.

In two judgments in the one case Justice Allsop has refused leave for the Humane Society to start proceedings in the Australian Federal Court regarding the whaling activities of a Japanese company in the 200 nautical mile Exclusive Economic Zone (“EEZ”) that Australia has declared off the coast of its Antarctic territory (see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 and [2004] FCA 1510).

The most recent judgment was in May, so you’ll have to excuse my being a little behind the times.

So, in brief at international law a State can proclaim a 200 nm EEZ off its coast, and in that area pass laws relating to natural resources – including fisheries – and enforce them even against foreign ships. Australia claims part of the territory of Antarctica and has proclaimed an EEZ adjacent to its coastline. So any whaling there is subject to Australian law and you could bring a case under Australian environmental legislation, right?

Well, as it turns out, no.

The basic reason for this is the 1959 Antarctic Treaty, which has about 46 parties or so, including Australia. The genius of the 1959 Treaty is that it ‘freezes’ all territorial claims in Antarctica, including those which overlap (those of Argentina, Chile and the UK) and provides that nothing done there will count as a claim of sovereignty and no State will make new or enlarged territorial claims. The trade-off is that all States are then free to send scientific missions wherever they please, and all people present in Antarctica are governed by the law of the State that sent them.

Now, here’s the tricky bit. Under Article 6, the 1959 treaty applies “to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” The 1982 Convention on the law of the sea enshrined the idea of the 200 nm EEZ. Prior to which, it was usually assumed all States were free to sail, fish (or whale) upon the high seas without being subject to another State’s law.

So, does Article 6 mean Australia is allowed to assert a high seas right that came along later than 1959 (the 1982 EEZ), or that Japan’s vessels enjoy the freedom of the high seas?

(Alright, I’m setting aside questions here of the Whaling Convention and later environmental treaties on Antarctica.)

Only four countries in the world that acknowledged the Australian claim of territorial sovereignty in Antarctica (Norway, New Zealand, France and the United Kingdom), and it is not clear that this extends to the Australian Antarctic EEZ. Of 46 parties to the 1959 treaty, the inconclusive support of only four makes it quite likely that any State who had a flag vessel arrested in that area would challenge the lawfulness of Australia’s EEZ jurisdiction and might well win.

The Japanese view would obviously be that Australia has no right to apply its environmental legislation to this area.

Basically, the argument put by the Australian government was that this was a matter of international relations and enforcement of these laws would prove embarrassing and possibly damaging to the national interest (ie a definitive ruling against the EEZ by an international tribunal now could prevent it later being more widely accepted later).

The Court was very careful to say that these submissions from the government did not purport to direct the Court as to the outcome or interfere with its independence. However, its established as matter of case law that the Courts will seldom go against government submissions on international relations issues.

Also, rather importantly, the Court found that allowing the case to proceed would be “futile”. The case concerned leave to serve process on a Japanese company in Japan. It had no assets in Australia and there was no way to compel it to appear in Court in Australia. Thus, there is every chance the case would be ineffective, as well as diplomatically embarassing (and, in my view, very likely contrary to international law).

Leave was granted to appeal on the same day as judgment, though I doubt the outcome will be any different on review.

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